Rajkumar N. Jain vs Inspector of Police, P. 5, Police Station Madras

N. Arumugham, J.—This revision is directed against the order passed by the X-Metropolitan Magistrate, Egmore, Madras in M.P. No.

2300 of 1995 in C.C. 5103 of 1994, dated 19-12-1995 for want of its legality and propriety.

The petitioner by name Raj Kumar N. Jain is a third party and a financier extending financial help to one of the accused by name Selvam for the

car bearing Registration Mark T.S.R. 2191, who along with other accused is facing charges for the offences under Ss. 147, 148, 341, 427, 302

and 506(II), Indian Penal Code. The prosecution case is that the vehicle above referred to though belongs to the said accused Selvam, he is a hirer

and the owner is the petitioner under the hire-purchase agreement as evident from the endorsement relating to the hire-purchase agreement found

in the registration certificate of the said vehicle and that the said vehicle was used by all the accused prior to and after the occurrence i.e. for

committing the crime and for going away from the scene of the occurrence. Since the above fact was ascertained during investigation, the car was

seized and produced to the judicial custody. Since the petitioner is the owner of the vehicle under the hire-purchase agreement, having financed for

the same, he wanted to seize the car for the non-payment of the due, but, however, he could not seize it and, therefore, a petition under S. 451 of

the Code of Criminal Procedure was filed by him before the learned X-Metropolitan Magistrate, Egmore, Madras in M.P. 186 of 1995 in C.C.

5103/1994. Learned Magistrate after hearing both the parties rejected the said application by making the following observations on 13-2-1995 :-

Heard : This is a petition for return of the vehicle bearing Registration Number as T.S.P. 2191 under S. 451, Cr.P.C. Prosecution strongly objects

on the ground that the vehicle has to be identified by the witnesses. Accused 6 is absconding. The charge-sheet is for the offences under Ss. 147,

148, 341, 427, 302 and 506(II), I.P.C. The offence under S. 302, I.P.C. is triable by Court of Session. Under the circumstances, I am of the

opinion that the objection of the police is reasonable. Petition is dismissed.

Challenging the said order dated 13-2-1995, the petitioner has not preferred any appeal or revision as provided by the law, but, however,

another petition was filed by him in M.P. 2300 of 1995. After hearing both the parties, learned ex-Metropolitan Magistrate has dismissed the said

petition by passing the following order :-

This is an application for return of property concerned in a murder case.

Earlier, the application for similar relief has been dismissed on 13-2-1995 under certain grounds, which the learned counsel sought to assail now. I

am afraid, inasmuch as an order declining the relief has been passed by a Magistrate. Particularly in view of the grounds advocated in the order, I

cannot sit over his order. Much of the arguments now advanced by the learned counsel for armed to disturb the reasoning/the premises upon which

the earlier order was passed. Prima facie, they lies elsewhere/different forum. In view of the above, I am unable to accept the demand of the

learned counsel. And the petition is dismissed.

Aggrieved at this, the present revision has been filed wherein the legality and propriety of the said order is being challenged.

I have heard the Bar for the revision-petitioner as well as the learned Government Advocate Mr. A. N. Rajan, against and for the impugned

order. True, from the records perused, it is noticed that on 13-2-1995 itself, the remedy of interim custody of the vehicle asked for by the

petitioner was dismissed by the predecessor of the learned X-Metropolitan Magistrate for some reason or other and that it was not challenged at

all by preferring any appeal or revision. However, a reading of the petition filed subsequently warranting the passing of the impugned order shows

that it was filed by the same petitioner before the same Court for the similar relief on the same grounds, but in changed circumstances viz., the then

absconding sixth accused was caught and put in the judicial custody and that for the said reason, in the said different circumstances, learned

Magistrate was again approached. The above said fact is clear from the averments made in the paragraph 5 of the petition itself. This changed

circumstances, however, seem to have not at all been taken note of and considered by the learned Magistrate while passing the impugned order. If

this plea is taken, the question of estoppel, or the similar ground or the disturbance of the earlier order, as referred to by the learned Magistrate,

would not arise in any manner. It seems that the learned Magistrate without identifying or not having referred to the change of circumstances,

passed the impugned order, which in my considered view is totally an erroneous approach, causing every prejudice to the third party-owner of the

vehicle in question. Therefore, having gone through the impugned order passed by the learned Magistrate on 19-12-1995, I feel that it is liable to

be set aside for want of its legality and propriety for the very reasoning that it was not on the basis of the facts referred to or the change of

circumstances brought to the notice of the learned Magistrate. Therefore, the impugned order is a non speaking one and it lacks every legality and

propriety.

Then, the question remains to be seen is that when two orders were passed by the learned X-Metropolitan Magistrate, one on 13-2-1995 and

another on 19-12-1995, will setting aside of the second order entitle the petitioner to get rid of the earlier order automatically, while the earlier

order has not been set aside or challenged ? The answer for this question is made available in Ss. 397 and 401 of the Code of Criminal Procedure,

in so far as the power of the Court having revisional jurisdiction is concerned. Section 397 of the Code reads like this :-

Calling for records to exercise powers of revision : (1) The High Court or any Sessions Judge may call for and examine the records of any

proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or propriety of any finding,

sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record,

direct that the execution of any sentence or order be suspended and if the accused is in confinement, that he be released on bail or on his own

bond pending the examination of the record.

Explanation :- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be

inferior to the Sessions Judge for the purposes of this sub-section and of S. 398(2) The powers of revision conferred by sub-section (1) shall not

be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by

the same person shall be entertained by the either of them.

Section 401 of the Code reads like this :-

High Court''s powers of revision :- (I) In the case of any proceeding the record of which has been called for by itself or which otherwise

comes to its knowledge, the High Court may, in its direction, exercise any of the powers conferred on a Court of appeal by Ss. 386, 389, 390 and

391 or on a Court of Session by S. 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be

disposed of in the manner provided by S. 392.

A casual reading of the above sections of law would clearly postulate the fact that the revisional powers conferred by the earlier section have

been regulated with further powers to the High Court in a wider manner and sense. And this is the main reason for the implementation of specific

words, ""which otherwise comes to its knowledge."" The phraseology employed in the latter section would clearly emphasise that not only the orders

passed by any subordinate Court, but also the decisions or the case records can be taken into consideration for the purpose of the revision under

the above section, by the High Court, to identify its legality and propriety, when it is brought by the party aggrieved or the High Court happens to

know any irregularity even suo motu. If the above legal aspect is understood and carved out, then, I feel, there will be no difficulty at all in probing

the legality and propriety of both the orders for the very reasoning that the earlier order was the basis for passing the latter order by the learned

Magistrate. It is, therefore, under the circumstances, I feel with every constraint that it is desirable for me to probe both the orders for identifying its

legality and propriety.

If the facts of the instant case are looked into on the basis of the above ratio, in the light of S. 451 of the Code of Criminal Procedure, it will

remain that the vehicle in question is said to have been used by the assailants just to reach the scene of occurrence and also to have an escape from

the scene after the crime was committed. It is under this context, the vehicle is required to be identified during the time of trial in order to establish

the guilt of the assailants/accused. Relevant registration certificate has already been issued and it shows that the vehicle was purchased by the

owner with the help of the hire-purchase agreement A perusal of the registration certificate, produced by the petitioner in the Court shows that the

first hire-purchase agreement was cancelled by the petitioner himself and the relevant endorsement for the existing hire-purchase agreement

depicting the petitioner as the owner is found available. In law, if the vehicle is purchased under hire-purchase agreement, the financier is deemed

to be the owner. Admittedly, the petitioner is a third party, not at all concerned with the alleged offence, however, the hirer happens to be one of

the accused and the vehicle was used by all the accused, according to the prosecution. The production of the vehicle during the trial for the

purpose of identification has become very essential and it is a legal duty too. Thus, however, it does not mean that the right of the third party to

have the vehicle is to be deprived of, in the context of the judicial custody of the vehicle, in view of S. 451 of the Code of Criminal Procedure

which deals with the vesting of the custody temporarily to a person by a Court of law. Having considered the above circumstances, I find no legal

obstacle for vesting with the temporary custody of the vehicle to the petitioner under S. 451 of the Code of Criminal Procedure, subject to the

conditions imposed by the Court of law. The Court below may impose the following conditions, added with such other conditions deemed to be fit

and proper under the circumstances while ordering the release of the vehicle in question and vesting with the custody of the same temporarily to the

petitioner :-

1) The petitioner shall execute a personal bond for the actual market value of the vehicle in question as on date, to be ascertained by the X-

Metropolitan Magistrate, Egmore, Madras.

2) Two independent sureties for the like sum each should be furnished.

3) The colour and structure of the vehicle in full or any part of it shall not be changed by the petitioner under any circumstances without the

permission of the Court.

4) The petitioner shall have no right to dispose of the vehicle or encumbrance it or allow any third party to use it until further orders of the Court.

5) The petitioner shall produce the vehicle intact before the Court whenever required and without fail and to that extent, the petitioner shall execute

an indemnity bond before the Court below.

Having considered the case in hand in its entirety, I am fully satisfied to allow this revision with the directions given above. In the result, for all the

foregoing reasoning, the revision succeeds and accordingly, the orders passed by the learned X-Metropolitan Magistrate in M.P. 2300 of 1995

and M.P. 186 of 1995, dated 19-12-1995 and 13-2-1995 respectively are hereby set aside and to comply with the above directions the

petitioner is hereby directed to approach the Court below with separate application, if so advised to get the temporary custody of the vehicle in

question. The revision is ordered accordingly.

Revision allowed.